Web Affiliate Program Agreement
This Web Affiliate Program Agreement (the Agreement), is hereby entered into by and between you, an Affiliate Partner (further defined below), and Teligence (Canada) Ltd., a corporation organized under the laws of the Province of British Columbia , and shall become effective upon your indication that you have read and agreed to the terms and conditions contained herein (the Effective Date).

Recitals
  1. Wherein, Company desires to promote one or more Brand(s) through management of its Web Affiliate Program (the Program).
  2. Wherein, Affiliate Partner desires to participate in the Program, and promote through advertisements one or more Brand(s) on the Affiliate Partners web site or sites (collectively the Site) in exchange for the opportunity to earn commissions from Company.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Affiliate Partner hereby agree as follows:

Section 1. Definitions

As used in this Agreement, including any Exhibits or attachments hereto, the following capitalized terms shall have the meanings specified as follows:

  1. "Affiliate Partner" refers to a qualified individual or business entity located in the United States who owns and/or operates one or more web sites, and agrees to participate in the Program for the opportunity to earn commissions from Company.
  2. "Affiliate Report" refers to the commissions report generated by Company and provided to an Affiliate Partner if the Affiliate Partner accrues commissions greater than USD$150.00 in a Calendar Month.
  3. "Brand(s)" refers to one or more IVR System brand managed by Company and designated by Company for inclusion in the Program.
  4. "Calendar Month" refers to the first through the last date of any given month.
  5. "Chargeback" refers to any transaction that is returned to Company as a financial liability due to Customer transaction disputes, fraud, authorization issues, inaccurate or incomplete transaction information, or an error in processing.
  6. "Commissions Payout Schedule" refers to the schedule set forth in Exhibit A.
  7. "Customer" refers to any person who participates in a Free Trial or establishes a New Membership when using the IVR system.
  8. "Free Trial" refers to any Customer who accesses the IVR System and inputs the Free Trial Code.
  9. "Free Trial Code" refers to identification by the IVR System of the specific advertisement that prompts a Customer to participate in a Free Trial or establish a New Membership.
  10. "IVR System" refers to the Interactive Voice Response system. When accessing an IVR System by dialing a designated local number, a Customer may confidentially connect live with and/or leave a voice mailbox greeting for other like-minded individuals also using the IVR System.
  11. "New Free Trial User" refers to any Customer who accesses the IVR System and inputs the Free Trial Code for the first time, as identified by the Customers Automatic Number Identification (ANI).
  12. "New Membership" refers to any valid credit card, check, money order, or other acceptable payment received by Company from a Customer for the establishment of a new membership account, but does not include an account established by a Customer as "new" if such Customer previously discontinued a membership account with Company within the past three (3) months.

Section 2. Payment and Commissions

2.1 Free Trials

An Affiliate Partner shall accrue commissions for each New Free Trial User tracked by the IVR System to the Affiliate Partner, pursuant to the Commissions Payout Schedule set forth in Exhibit A. An Affiliate Partner shall not accrue commissions for any duplicate ANI detected by the IVR System.

2.2 New Memberships

An Affiliate Partner shall not accrue commissions for a Customer who renews a membership during the three (3) month period set forth in Section 1(xii), or for any other New Membership duplication detected by the IVR System.

2.3 Payment and Commissions

Each New Free Trial User and/or New Membership will be tracked by the IVR System to the Affiliate Partner to determine the amount of commissions accrued, if any, by each Affiliate Partner in a Calendar Month. Any such commissions shall be due and payable by Company to the Affiliate Partner, subject to the following terms and conditions:

  1. An Affiliate Partner shall accrue commissions based on the Commission Payout Schedule for any Calendar month
  2. An Affiliate Partner shall not receive the payment of any commissions from Company unless and until the Affiliate Partners accrued commissions balance reaches a minimum of USD$150.00 during a Calendar Month;
  3. An Affiliate Partner generating an amount greater than USD$150.00 in a Calendar Month will be sent a check for payment of commissions due and owing by Company to the Affiliate Partner (less any taxes required to be withheld under applicable law, any Chargebacks, or any other Customer refunds);
  4. The Affiliate Partner is required to cash or deposit a commission check received from Company within ninety (90) days from the date the check was issued to the Affiliate Partner. Company is not required to reissue any undisputed payment to an Affiliate Partner for a commission check older than ninety (90) days;
  5. In the event a commission check sent by Company to an Affiliate Partner is lost, stolen, or destroyed, the Affiliate Partner shall issue, in writing, a request to Company for a replacement check within the ninety (90) day period outlined in Section 2(iv). Any such request must include as many details about the dates and earnings in question as possible, the Affiliate Partners company information, and to whom the original commission check was issued. Any commission check reissued by Company to an Affiliate Partner pursuant to the above will be held to the same ninety (90) day expiration. In addition, all bank fees or other expenses related to the issuance of a replacement check, including any charge for a stop order, shall be charged to the Affiliate Partner. In the event an Affiliate Partner is notified by Company of incorrect or otherwise insufficient company information (for instance a commission check or other correspondence sent to an Affiliate Partner is returned to Company), the Affiliate Partner shall have ninety (90) days to provide Company with correct company information to avoid cancellation of the returned commission check. Should the Affiliate Partner not respond to Company with correct company information within six (6) months, all payments unclaimed by the Affiliate Partner will become null and void, and the Affiliate Partners account will be terminated pursuant to Section 4;
  6. Company reserves the right to make the final decision, in good faith, on any payment dispute that may arise between Company and an Affiliate Partner.

Section 3. Affiliate Partner Conduct

Each Affiliate Partner participating in the Program must be and always remain in compliance with the terms and conditions for Affiliate Partner conduct set forth herein. Any breach by an Affiliate Partner of this Section 3 may result in immediate termination of this Agreement by Company pursuant to Section 4, in addition to liability for damages resulting from such breach.

  1. An Affiliate Partner shall not display any of the following content or engage in any of the following activities while participating in the Program:
    • Violent images or messages that promote violence;
    • Promotion of discrimination based on race, sex, religion, national origin, physical disability, sexual orientation or age;
    • Promotion of illegal activities;
    • Promotion or display of defamatory, libelous or harmful material or material that otherwise infringes upon the rights of any third parties;
    • Content that is inconsistent with the policies and/or practices of Company;
    • Spamming (repeated, unsolicited emails) to Customers by an Affiliate Partner.
  2. The Affiliate Partner is solely responsible for ensuring all trademark, logo and copyright information displayed on the Site associated with the Program does not infringe on any Company or third party intellectual property rights or other laws. Under no circumstances shall Company be liable to an Affiliate Partner, or any third party, for intellectual property infringement;
  3. An Affiliate Partner shall in no way attempt to process, or claim responsibility for, Customer payments, renewals, cancellations, or refunds, or any other related Customer service requests associated with the Program;
  4. An Affiliate Partner shall not make any false or otherwise misleading representations or statements to Company, or to any third party in relation to the Affiliate Partners participation in the Program.
  5. An Affiliate Partner shall solely use the advertising content provided by Company to the Affiliate Partner for participation in the Program.

Section 4. Term and Termination

The term of this Agreement shall begin as of the Effective Date, and shall continue until termination by Company or the Affiliate Partner pursuant to this Section 4.

4.1 Termination by Company

This Agreement is subject to termination by Company pursuant to any of the following:

  1. the number of Affiliate Partners has reached the maximum number allowed (based on the allocation of Free Trial codes) and Company, in its sole discretion, terminates the lowest revenue generating Affiliate Partner in the Program;
  2. a reasonable belief by the Company that an Affiliate Partner has participated in or has otherwise conducted fraudulent activity under this Agreement, where fraud can be defined as the deliberate attempt by any Affiliate Partner to obtain money under false pretenses;
  3. any breach by an Affiliate Partner of the terms of Section 3, or any other terms and conditions of this Agreement;
  4. any failure by an Affiliate Partner to provide Company with or maintain current and accurate company information in a timely fashion;
  5. two (2) weeks prior written notice to an Affiliate Partner, either electronically or otherwise, of the termination of this Agreement by Company for any reason and without cause.

4.2 Termination by Affiliate Partner

This Agreement may be terminated by an Affiliate Partner upon two (2) weeks prior written notice to Company, either electronically or otherwise, of the termination of this Agreement by the Affiliate Partner for any reason and without cause.

Upon any termination of this Agreement, either by Company or an Affiliate Partner, the Affiliate Partner shall immediately remove and stop using any and all intellectual property owned by Company from the Affiliate Partners Site, including, but not limited to, any links, advertising, or banners associated with Company or the Program. Affiliate Partners shall no longer accrue commissions once this Agreement has been terminated, however Company shall pay any commissions due and owing to an Affiliate Partner up to the date of termination pursuant to Section 2.2, provided the Affiliate Partner is not in breach of any terms and conditions set forth in this Agreement.

Section 5. Independent Parties

Nothing in this Agreement shall grant an Affiliate Partner any authority to act on behalf of Company. Each Affiliate Partner shall remain independent of Company at all times, and shall be considered as an independent party. Nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between Company and an Affiliate Partner.

SECTION 6. DISCLAIMER OF WARRANTIES

EACH AFFILIATE PARTNER EXPRESSLY UNDERSTANDS AND AGREES THAT:

PARTICIPATION AS AN AFFILIATE PARTNER IN THE PROGRAM IS AT THE SOLE RISK OF THE AFFILIATE PARTNER. THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

COMPANY MAKES NO WARRANTY THAT (i) THE PROGRAM WILL MEET THE REQUIREMENTS OF AN AFFILIATE PARTNER, (ii) THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY AN AFFILIATE PARTNER THROUGH THE PROGRAM WILL MEET THE AFFILIATE PARTNERS EXPECTATIONS, AND (iv) ANY ERRORS IN THE IVR SYSTEM WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY AN AFFILIATE PARTNER THROUGH THE USE OF THE PROGRAM IS DONE AT THE DISCRETION AND RISK OF EACH AFFILIATE PARTNER, AND THE AFFILIATE PARTNER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR OTHER USE OF ANY SUCH MATERIAL.

SECTION 7. LIMITATION OF LIABILITY

EACH AFFILIATE PARTNER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE AFFILIATE PARTNERS PARTICIPATION IN THE PROGRAM; (ii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (iii) ANY OTHER MATTER RELATING TO THE PROGRAM. FURTHERMORE, THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM SHALL IN NO EVENT EXCEED THE TOTAL COMMISSIONS PAID BY COMPANY TO THE AFFILIATE PARTNER PURSUANT TO THIS AGREEMENT.

SECTION 8. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 6 AND 7 MAY NOT APPLY TO AN AFFILIATE PARTNER.

SECTION 8. MODIFICATIONS

Company reserves the right to modify the Program, or the terms and conditions of this Agreement, including Exhibit A, at any time and for any reason, and the Affiliate Partner's continued participation in the Program shall be deemed an acceptance of any such modifications put into effect by Company. It is therefore the responsibility of the Affiliate Partner to check the Program site for any modification update notices on a regular basis. If, at any time, an Affiliate Partner disagrees with any modifications to this Agreement or the Program, or no longer wishes to abide by the terms and conditions of this Agreement, the Affiliate Partner shall terminate this Agreement and its participation in the Program pursuant to Section 4.

SECTION 9. ASSIGNMENT

This Agreement may not be assigned, by operation of law or otherwise, without the prior written consent of Company. Subject to the foregoing restriction, this Agreement is binding upon and is enforceable by the parties and their respective successors and assigns.

SECTION 10. GOVERNING LAW

This Agreement shall be governed by the laws of Canada and the Province of British Columbia Canada, irrespective of any conflict of laws.

SECTION 11. ENTIRE AGREEMENT

This Agreement sets forth the entire understanding of the parties hereto and supersedes any and all prior agreements, arrangements or understandings relating to the subject matter hereof.